New Delhi: Amidst criticism of judicial
activism, the Supreme Court has said judiciary cannot encroach
into the powers of the legislature or the executive as it
would be violative of constitutional rules on separation of
powers between the different wings of democracy.
"There is broad separation of power in the Indian
Constitution. As held by this court in Divisional Manager,
Aravali Golf Club & Anr Vs Chander Hass & Anr case, it is not
proper for the judiciary to encroach into the domain of the
legislature or the executive," the bench said.
A bench of justices Markandeya Katju and C K Prasad
passed the order while quashing two separate judgements of the
Madhya Pradesh and Gujarat High Courts which had upheld the
orders of the Central Administrative Tribunal (CAT) for
regularisation of casual employees in the Railways.
In the first case, the Madhya Pradesh High Court had
upheld the plea of Ram Singh Thakur and other employees for
regularisation of services in the Railway Employees Consumer
Co-operative Society Ltd.
It upheld the May 30, 2001, CAT`s direction to the
Railway Board Chairman to formulate a suitable scheme for
induction of Singh and similarly placed employees of other
co-operative societies in regular Group `D` posts and
alternatively also as casual Group `D` employees in the
Aggrieved, the Centre appealed in the apex court.
"In our opinion, the order of the Tribunal as well as
the impugned judgements of the High Court were totally
unwarranted and illegal," the apex court said while quashing
According to the apex court, framing of a scheme such
as the one done by the Tribunal and approved by the High Court
was a purely executive function and could not validly be done
by the judiciary.
"Moreover, in view of the judgement of this court in
Union of India [Railway Board] & Ors Vs JV Subhaiah &
case, the employees of a co-operative society are not
employees of the government.
"In our opinion, the direction to frame a scheme for
appointment can only be given by the executive (and that
too according to Article 16 and other provisions of the
Constitution)," the bench said.
The bench also quashed judgements of the CAT and the
Gujarat High Court for regularisation of mess employees.
"It appears that the respondents were working in a
Mess run by the trainee officers in the Railway Staff College.
That Mess was not run by the railways but was run by the
trainee officers themselves so that they could get proper
"It is evident that the respondents were not railway
employees but a direction has been given that they be
regularised in railway service. In our opinion, a direction
regarding regularisation in service is a purely executive
function and such a direction cannot validly be given by the
judiciary," the bench added.